Case Number: BC691484 Hearing Date: December 17, 2019 Dept: 47

Dorothy Diller v. Barry Weiss, et al.

MOTION TO COMPEL BANK LEUMI TO RESPOND TO DEPOSITION SUBPOENA FOR PRODUCTION OF DOCUMENTS

MOVING PARTY: Plaintiff Dorothy Diller

RESPONDING PARTY(S): Defendants Barry Weiss & Edmundo Rosenberg

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants have breached the fiduciary duties owed by partners to a partnership agreement.

Plaintiff moves to compel Bank Leumi to respond to Plaintiff’s deposition subpoena for the production of documents. Defendants oppose the motion and request $4,500 in sanctions.

TENTATIVE RULING:

Plaintiff Dorothy Diller’s motion to compel Bank Leumi to respond to Plaintiff’s deposition subpoena for production of documents is DENIED as untimely.

Defendants’ request for sanctions is DENIED.

DISCUSSION:

Plaintiff moves to compel compliance by nonparty Bank Leumi with a deposition subpoena for production of records.

Plaintiff seeks to compel nonparty Bank Leumi to comply with a subpoena to produce documents. The Court agrees with Defendants that this motion is untimely.

None of the statutory bases Plaintiff cites for the motion in her introduction – CCP §§ 2020.010(a)(3), 2020.020, 2020.410(a), and 2025.280(b) – actually provide the statutory basis for a motion to compel documents pursuant to a deposition subpoena. When the deponent has objected to the subpoena, the basis for this type of motion to compel is CCP § 2025.480, which provides:

(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

. . .

(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.

(j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(CCP § 2025.480 (bold emphasis added).)

Where a deponent serves an objection to a deposition notice and does not appear, the “record of the deposition” is complete no later than the day set for the deposition, thereby triggering the 60-day time limitation as of that day:

By analogy, where a party serves a demand for documents on another party (see §§ 2031.010–2031.040), a motion to compel is subject to a filing deadline as long as a timely response to the demand is made. That deadline applies whether the responding party agrees to a partial production or objects to the demand in its entirety and produces nothing. (See §§ 2031.210–2031.260, 2031.300, 2031.310, subds. (a), (c).) Similarly, a party’s timely response to interrogatories or to requests for admissions—regardless of the number of objections—requires that a motion to compel be filed within a statutory time period. (See §§ 2030.210–2030.260, 2030.290, 2030.300, subds. (a), (c), 2033.210–2033.250, 2033.280, 2033.290, subds. (a), (c).)

. . . In discovery between parties—document demands, interrogatories, and requests for admissions—the timely service of objections triggers a filing deadline for a motion to compel. . . .

Nor is the 60-day period rendered inapplicable to business records subpoenas merely because section 2025.480 refers to the “completion” of the record of the deposition. (See § 2025.480, subd. (b).) . . .

Unzipped points out that section 2025.480 appears in a chapter of the Act entitled “Oral Deposition Inside California” (see 21A West’s Ann. Code Civ. Proc. (2007 ed.) pt. 4, tit. 4, ch. 9, p. 101), arguing that the 60-day period applies only to oral depositions. But, as the court stated in Monarch, rejecting the same argument: “The title does not make the law. … And despite the title, [the chapter] does contain provisions pertaining to depositions for production of business records … .” (Monarch, supra, 78 Cal.App.4th at pp. 1288–1289, citations omitted.) Further, as Shellfish recognized, “the Legislature included a [business records] subpoena within the general category of ‘oral depositions … .’ ” (Shellfish, supra, 56 Cal.App.4th at p. 21.)

Our conclusion that section 2025.480 governs business records subpoenas is also supported by the language of the statute’s first subdivision, which refers not only to the deponent’s “fail[ure] to answer any question” but also to the “fail[ure] to … produce any document … under the deponent’s control.” (§ 2025.480, subd. (a).) Thus, oral and written depositions and document productions are all covered. In addition, subdivision (a) refers to documents sought by either a “deposition notice or a deposition subpoena,” so the statute applies to parties and nonparties. And, under subdivision (c), notice of the motion to compel may be given either “orally at the examination”—which would apply to a deposition at which the deponent testifies—or “by subsequent service in writing”—which would apply to a subpoena seeking only business records. (See Cal. Rules of Court, rule 3.1025 [discussing notice required for nonparty deponents].)

Nothing in subdivision (d) of section 2025.480 is to the contrary. That provision states that the relevant pages of the deposition transcript, if any, shall be lodged with the trial court before the hearing on the motion. Thus, where the motion to compel involves the failure to answer a question, the pertinent part of the transcript must be lodged. But where the motion involves the failure to produce documents in response to a business records subpoena, no part of any transcript will be relevant. Subdivision (d) ensures that the motion will be tailored to the type of deposition at issue.

. . .

In sum, the objections served in response to Unzipped’s business records subpoenas constituted a record of a deposition. The record was complete as of the date set for the production, December 7, 2005, when Unzipped received the objections. Unzipped had 60 days thereafter, until February 6, 2006, to file a motion to compel. It waited until March 1, 2006, which rendered the motion untimely. The deadline was mandatory. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1408–1410 [68 Cal. Rptr. 2d 708].) The order granting the motion must therefore be reversed.

(Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131-136 (bold emphasis added).)

Here, the subpoena at issue was served on June 19, 2019, with the deposition noticed for July 10, 2019. (Declaration of Baruch C. Cohen, Exh. 6.) Defendants served their objections via mail and email on July 2, 2019.[1] (Id., Exh. 7.) Thus, the 60-day period began to run no later than July 10, 2019 and expired no later than September 9, 2019.[2] This motion was filed and served on October 18, 2019 – past the deadline for Plaintiff to bring a motion to compel this deposition.

Although CCP § 2025.450 – another provision that Plaintiff does not cite – also provides a basis for certain motions to compel and does not have a 60-day limit, that section only applies if no valid objection under CCP § 2025.410 has been served. Here, Defendants did serve objections, and thus, the 60-day time limit applies.

Accordingly, the motion to compel is DENIED as untimely.

In their opposition, Defendants seek sanctions against Plaintiff for unsuccessfully making this motion. Under CCP § 2025.480, the Court “shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes . . . a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2025.480(j).) Here, although Plaintiff did not act with substantial justification, other circumstances make the imposition of the sanction unjust. Due process requires that a request for monetary sanction expressly “identity each person, party, and attorney against whom the sanction is sought.” (CCP § 2023.040.) Defendants did not do so here and did not even mention the request for sanctions in their notice of opposition. Other than mentioning the amount of sanctions requested in the caption of the opposition, Defendants buried the request for sanctions against “Plaintiff and Plaintiff’s counsel” – again, without specifically naming Plaintiff’s counsel – on page seven of their ten-page opposition. This does not satisfy due process.

In addition, it is well established that a trial court has the discretion to deny a request for attorney’s fees altogether, even though it may be required by law, whenever the request for attorney’s fees is grossly excessive and/or shocks the conscience of the court.

“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [186 Cal. Rptr. 754, 652 P.2d 985]; accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137 [104 Cal. Rptr. 2d 377, 17 P.3d 735].)

(Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990-991 (bold emphasis added).)

Here, a request for $4,500 in sanctions to oppose an untimely motion — $1,500 of which is intended to account for time responding to a reply that was never filed and attending the hearing – is excessive enough to deny the award on that additional basis.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 17, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] This was at least three calendar days before the date for which the deposition was scheduled, in accordance with CCP § 2025.410(a).

[2] Sixty days from July 10 is Sunday, September 8, extended to the next Monday pursuant to CCP § 2016.060.